P. Schultz
October 10, 2014
The following is an email exchange with a friend about Matt Franck,
who is arguing that the courts’ decisions regarding gay and lesbian marriage
are analogous to the Supreme Court’s decision in the Dred Scott case. First, is
a link to the Colbert Report where Matt, who replaced me at Radford University
a long time ago, is featured, although only briefly.
Subject: Matt Franck makes the Colbert Show
About five minutes into this video, Matt is present or
his picture is present. I wonder if he was invited to be on the show and
refused. I should write and find out.
Hi Peter,
I looked further- here is Matt's latest piece in NRO
responding to critics of his comparison of recent decisions to Dred Scott.
http://www.nationalreview.com/bench-memos/389782/dred-scott-and-same-sex-marriage-matthew-j-franck
Maybe you can explain this to me. This kind of
reasoning just makes my head hurt. Is Matt simply arguing that if a state
legislature wants to pass a law affirming traditional marriage and denying
marriage equality to gays, then their right to do so should be upheld in the
courts? But that would apply to slavery as well, right? Was Dred Scott
wrong because the Court should have ruled in favor of Dred Scott or was it
wrong because it should have left it up to the states? But that would have led
to civil war as well, right? So what's his point? The real analogy
it seems here is whether the Supreme court should grant marriage equality as a
"right" that exists everywhere in the country or whether they leave
it up to the states to decide. Matt just reverses the definition of what
is "right" in his reasoning and suggests it's obvious that marriage
doesn't involve two men or two women. The fact that marriage rights should
be granted to gay couples (like freedom to African Americans) appears to be a
much stronger argument in a republican society- no establishment of religion.
But is Matt OK if gay marriage slowly becomes the law of the land, state
by state? I guess that's what I don't get. Help.
Craig
Craig:
I am going to respond without reading Matt's original piece as
I don't really want to do that as it is a waste of my time and, being retired,
as you now know, I don't have a lot of free time. ;-)
I think, to put it simply, Matt wants to say (a) that the courts'
decisions in favor of gay and lesbian marriage are bad decisions and (b) they
are so bad that they should be compared to the Dred Scott decision, which is
generally recognized as one of the worst decisions, if not the worst Supreme
Court decision of all time. I believe it is really this simple.
But being an academic, Matt cannot write this or leave it this way.
He has to make several points - don't we academics always have multiple points
to make? - to dress up his preference for decisions, well, doing what? It is,
as you have noticed, hard to say what kind of decision(s) Matt would want. For
example, he writes: "Like Dred Scott,
judicial decisions in favor of same-sex marriage needlessly divide the country
on an important moral issue about which people differ, and could otherwise
debate their differences in the democratic process, on the pretext that there
is a genuine constitutional issue in the cases." It would seem
here he wants the courts to take a pass on this issue and let the country, the
people, decide whether to legitimate gay and lesbian marriage or not.
[Fine with me. As George Will said the other day, only old people are against
such marriages! And we are dying!!]
Or: "Like Dred Scott, these
decisions rely, in part, on the conflation of the due process clause with a
constitutionally ungrounded and so far unexplained power of the judiciary to
decide what is “arbitrary” or “reasonable” or “just” in legislation, known by
the laughable oxymoron “substantive due process.” This is a
reference to a legal doctrine that has bothered many people, labeled
"substantive due process," meaning that there are some things the
government cannot do even though the process by which they were done was
"due," that is, reasonable and fair. For example, even though, say,
Carrie Buck was determined to be "unfit to reproduce" by a process
that was reasonable and fair, to deny anyone the right to reproduce would
violate "substantive due process." But how does one avoid making such
judgments, especially if you are a justice sitting on a court, which is suppose
to concern itself with "justice?" Moreover, I have not read these
decisions so I don't know if they rely on substantive due process or not. Matt
does not say they do. But what I do know is, is that Dred Scott did not rely on
"substantive due process" as this concept as labeled was not created
until after the civil war. [The substance of it was around earlier as you might
guess given the nagging persistence of human beings to do just things. I guess
Matt would prefer the courts not try to do what is just, which makes him,
rather surprisingly and confusingly, close to embracing "legal
positivism."]
Again: "Like Dred Scott,
decisions for same-sex marriage rely on a false anthropology that drives a
political decision made by judges. In Dred Scott it was
the false idea that some human beings can own other human beings, and that a
democratic people cannot say otherwise. In the same-sex marriage rulings
it is the false idea that men can marry men, and women can marry women, and
that democratic peoples cannot say otherwise." This is pure
academeeze as near as I can tell or what Colbert would label
"truthiness." "A false anthropology" driving "a
political decision?" Why not just say that the courts' decisions have been
"political?" The problem in Dred Scott was not a "false
anthropology" but rather a decision that promised to facilitate by
legalizing slavery throughout the United States, which would imply that slavery
was just. This was THE PROBLEM with Dred Scott, that it implied that
slavery was just and, therefore, should be protected by the laws. [Before Dred
Scott, "once free, forever free" was rather widely recognized, even
in some southern courts, meaning that once on free soil slaves were forever
free thereafter because it was recognized that slavery was unjust. It was this
that the Dred Scott decision overturned or tried to overturn.] Matt is correct
that this would have meant that slavery would have to be accepted nationally,
at least legally acceptable. And, of course, the courts' decisions regarding
gay and lesbian marriage have the same outcome, that the prohibition of such
marriages is unconstitutional. But, of course, this only leads or should lead
to the question of the justice of gay and lesbian marriage. Apparently, Matt
doesn't want to go there and so he attributes the courts' decisions to "a
false anthropology." Once again, and interestingly, Matt seems to want to
avoid the question of justice, which I guess makes sense when your argument
requires that you equate slavery and gay and lesbian marriage!
Next: "Like Dred Scott,
same-sex marriage rulings are a harbinger of further depredations, by courts
and others, on human freedom in other dimensions. In 1857, it was the
freedom to live in a country where slavery was minimized and at least
arguably on its way to extinction. Today, it is the freedom to live,
work, and learn in communities, schools, universities, and other
organizations in which people can live the truth about marriage, for
religious or other moral reasons." The slavery issue was not about
the "freedom to live in a country where slavery was minimized and at least
arguably on its way to extinction." The issue was whether certain human
beings, black human beings, could be justly enslaved. The freedom of whites was
not the issue, although Chief Justice Taney would have liked and tried to make
it the issue! Hence, he argued that whites should be able to take their
"property" wherever they wanted to take it, as guaranteed by the due
process clause of the Constitution. Here, surprisingly, Matt seems to be an
ally of C.J. Taney, not his critic. Maybe this is what happens when you ignore
questions of justice. Further, as Matt has framed the issue today, it would
seem to be a "further depredation...on human freedom" if
"communities, schools, universities and other organizations" were not
able to discriminate against human beings who happen to be white, black,
female, male, gay, straight, lesbian, Hispanic, Jewish, Islamic, Christian,
etc., etc., etc. if such places thought "the truth" required such
apartheid arrangements. I believe C.J. Taney would be able to embrace Matt's
reasoning here.
Finally: "Like Dred Scott,
same-sex marriage rulings, for all the reasons above, amount to a comprehensive
threat to republican government, raising the question Lincoln asked in his
First Inaugural Address, whether the American people are entitled to govern
themselves, or must surrender to government by an “eminent tribunal” of
judicial despots." Well, yes, Lincoln's question was and is
appropriate. Matt is correct about that. But that only gets him to allowing the
American people to decide the issue of gay and lesbian marriage, a decision
they have appeared to have made already in its favor. But this is not only true
of the Dred Scott decision and the decisions on gay and lesbian marriage but
all Supreme Court decisions, even Gore v. Bush, or the Hobby Lobby decision, or
the People's United decision, for example. The Supreme Court, especially when
exercising the power of judicial review is hardly a "republican
institution," by my way of thinking. Matt is attempting to single out the
"same-sex marriage rulings" as different, like Dred Scott. But they
aren't different at all.
And, so, I return to my beginning: Matt doesn't agree with or like
these decisions. As is said in Texas, you can put earrings and a dress on a
pig, but it is still a pig!
And this is why, I believe, why you are confused and why your head
hurts.
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